A sniff is up to snuff

Published: Wednesday, February 20, 2013 at 08:00 AM.

The U.S. Supreme Court loosened the constitutional leash on law enforcement Tuesday in a decision regarding drug-sniffing dogs.

In Florida v. Harris, a case that emanates from a traffic stop in Liberty County, the high court unanimously overturned a Florida Supreme Court decision on whether a drug-sniffing dog’s alert to his police handler constituted probable cause to conduct a Fourth Amendment search.

The state Supreme Court had ruled that a police dog’s alert is not enough by itself to satisfy that the dog is properly trained and certified for the detection of a specific illegal drug. The justices opined that “courts often accept the mythic dog with an almost superstitious faith,” and that to demonstrate a dog’s reliability prosecutors needed to produce a wider array of evidence, such as training and certification and his performance in the field.

The Supreme Court ruled the state court was barking up the wrong tree. Justice Elena Kagan wrote that the high court previously had instituted a “practical and common-sensical standard” of probable cause that looked at the “totality of the circumstances.” It rejected “rigid rules, bright-line tests and mechanistic inquiries in favor of a more flexible, all-things-considered approach.”

The Florida Supreme Court, she wrote, “flouted” this “established” approach.

The federal court believes the better measure of a dog’s reliability comes away from the field, in controlled environments, and that evidence of a dog’s certification or training program can prove sufficient.

That strikes us as backward — that the dog’s performance in the field is the key test, since that is where the Fourth Amendment meets the road. Trainings and certifications are not standardized — although for that matter, neither are field results.

The U.S. Supreme Court loosened the constitutional leash on law enforcement Tuesday in a decision regarding drug-sniffing dogs.

In Florida v. Harris, a case that emanates from a traffic stop in Liberty County, the high court unanimously overturned a Florida Supreme Court decision on whether a drug-sniffing dog’s alert to his police handler constituted probable cause to conduct a Fourth Amendment search.

The state Supreme Court had ruled that a police dog’s alert is not enough by itself to satisfy that the dog is properly trained and certified for the detection of a specific illegal drug. The justices opined that “courts often accept the mythic dog with an almost superstitious faith,” and that to demonstrate a dog’s reliability prosecutors needed to produce a wider array of evidence, such as training and certification and his performance in the field.

The Supreme Court ruled the state court was barking up the wrong tree. Justice Elena Kagan wrote that the high court previously had instituted a “practical and common-sensical standard” of probable cause that looked at the “totality of the circumstances.” It rejected “rigid rules, bright-line tests and mechanistic inquiries in favor of a more flexible, all-things-considered approach.”

The Florida Supreme Court, she wrote, “flouted” this “established” approach.

The federal court believes the better measure of a dog’s reliability comes away from the field, in controlled environments, and that evidence of a dog’s certification or training program can prove sufficient.

That strikes us as backward — that the dog’s performance in the field is the key test, since that is where the Fourth Amendment meets the road. Trainings and certifications are not standardized — although for that matter, neither are field results.

For example, last year The News Herald’s Chris Olwell reported on a dispute between defense attorney Walter Smith and the Bay County Sheriff’s Office over drug dogs’ field performance records. In one instance, a dog sniffed 85 cars in the Bay High School parking lot, alerting on 10; four searches turned up no contraband. To the defense, this was a 60 percent success rate. The BCSO, though, argued it was 95 percent accurate, because it considered the 75 cars the dog passed on as proof they were clean.

To be sure, the dogs are not above reproach. The Supreme Court ruled that a defendant must have the opportunity to challenge evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.

Nevertheless, the justices emphasized that all the facts surrounding a dog’s alert, “viewed through the lens of common sense,” are sufficient. “A sniff is up to snuff when it meets that test,” Kagan colorfully wrote.

We believe there should be more uniform standards for drug dogs and their handlers, just as there are for Breathalyzers, to reduce potential errors and abuses in Fourth Amendment probable cause searches. We hope the court will be more skeptical in another pending drug dog case, Florida v. Jardines. Stay tuned.